How To Remove A Case - ABA YLD 101 Practice Series

By Peter A. Cownan and Stephen W. Still

Invariably, every litigator will find him or herself with a state court case which - either for purposes of strategy or convenience - they would prefer to litigate in federal court. The process of terminating a state court litigation and re-filing in federal court is called Removal.

Successfully removing a case requires an analysis of the relevant parties and allegations and an adherence to a myriad of procedural rules. Although an in-depth analysis of every potential issue is not possible here, this article will provide you with a step-by-step guide for navigating the removal process.

Statutory Background
Federal Law allows a defendant - and only a defendant 1 - to remove a case to federal court. Generally, removal will be permitted if the lawsuit at issue could have originally been filed in federal court. Thus, a defendant must demonstrate (1) federal jurisdiction, (2) venue, and (3) the timeliness of the removal.

Federal Jurisdiction
Federal removal jurisdiction is generally established in one of two ways. First, a defendant can demonstrate the existence of a federal question by establishing that the lawsuit arises "under the Constitution, laws, or treaties of the United States." See 28 U.S.C. § 1331 (2009). Even if a claim based upon federal law is joined with a non-removable state law claim, the entire case may still be removable pursuant to the doctrine of supplemental jurisdiction, see 28 U.S.C. § 1367 (2009), or the federal courts' statutory authority to hear separate and independent federal claims, see 28 U.S.C. § 1441(c) (2009).

Second, even if no question of federal law is involved, federal removal jurisdiction may still exist if a defendant can establish the existence of complete diversity and an amount in controversy exceeding $75,000. See 28 U.S.C. § 1332 (2009). Complete diversity exists when the citizenship of each plaintiff differs from the citizenship of each defendant. Additionally, an important limitation in diversity cases is that no defendant may be a citizen of the state from which removal is sought. 28 U.S.C. § 1441(b). Thus, if a Montana plaintiff brings an action against a Colorado defendant in Colorado state court, the Colorado defendant cannot remove the case despite the existence of complete diversity. 

Appropriate Venue
To ensure that venue is appropriate, a removing defendant should remove the state court action to the federal court encompassing the same jurisdiction.

Once a defendant receives a pleading or other document clearly indicating the lawsuit is removable, the defendant has 30 days to file a notice of removal in district court. 28 U.S.C. § 1446(b) (2009). In cases where federal removal jurisdiction is premised upon diversity, a defendant may not remove the case to federal court if more than one year has passed since the case was filed. Id.  

Removal Procedure
Once a defendant establishes that a case is subject to removal, various documents must be filed to effectuate the re-filing of the complaint in federal court, the termination of the state court case, and the service of notice to the affected parties. Please ensure you supplement this guide by checking the local rules of the district court you are removing to as additional procedures are often required.   

Step 1:

  • The moving defendant should file the following documents in the appropriate district court:   
    Notice of Removal - Affirmatively state and explain the grounds for removal and include each of the documents which were served and filed in state court (complaint, answer, etc.).
  • Joinder - If applicable, ensure that each defendant has joined the Notice of Removal.
    With few exceptions, removal will only be permitted if every defendant joins the Notice of Removal. See, e.g., Hewitt v. City of Stanton, 798 F.2d 1230, 1232 (9th Cir. 1986); Doe v. Kerwood, 969 F.2d 165, 167 (5th Cir. 1992).
  • Miscellaneous Documents - Depending on the relevant local rules, defendants may be required to file a Civil Cover Sheet, Notice of Related Cases, Disclosure Statement, Notice of Pendency of Other Actions, and Certification as to Interested Parties.

Step 2:

  • The moving defendant should file the following documents in the state court from which the case is being removed:
  • Notice To Adverse Party of Removal of Case To Federal Court - Promptly give written notice of the removal to all adverse parties, making sure to attach a copy of the filed Notice of Removal. 28 U.S.C. § 1446(d) (2009).
  • Notice To Clerk Of Removal to Federal Court - Notify the state court of the removal action and that notice of said action has been given to each adverse party. 28 U.S.C. § 1446(d).
    Filing this with the state court "effect[s] the removal and [directs that] the State court shall proceed no further unless and until the case is remanded." 28 U.S.C. § 1446(d).  

Step 3:

  • The moving defendant should file the following documents in the district court where the Notice of Certificate of Service of Notice to Adverse Party of Removal of Case to Federal Court
  • Certificate of Service of Notice to State Court Clerk of Removal to Federal Court
  • Certificate of Service To Adverse Parties of Supporting Documentation - certifies that copies of those documents given to the defendant by the district court in response to the filing of the Notice of Removal have been provided to each adverse party.

This article outlines the basic requirements of removing a case to federal court. As you may encounter a range of complex, case-specific issues during this process, ensure that you leave yourself sufficient time to conduct a review of case law specific to your jurisdiction. Moreover, as each district court is likely to supplement or otherwise modify the requirements listed above, be sure to check the appropriate district court's local rules as well as those of the judge handling your case.

1 A plaintiff may never remove its own case, even if the defendant files counterclaims alleging violations of federal law. See, e.g., Progressive West Ins. Co. v. Preciado, 479 F.3d 1014, 1017 (9th Cir. 2007). Instead, a plaintiff must seek dismissal of the case and then re-file in federal court. Id. 


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